By Landing Ceesay
The lawyer representing the 1st and 2nd accused persons Christopher E. Mene, has filed ‘No Case to Answer’ in the Gam Petroleum corruption scandal trial at the High Court of the Gambia.
Lawyer Mene is the lead counsel of the accused persons in the trial at the High Court of the Gambia involving two staff of Gam Petroleum.
The 2 staff namely Saihou Drammeh (1st accused), former Managing Director and Lamin Gassama (2nd accused), former Operations Manager of the institution are charged with 8 counts (3 counts of economic crimes and 5 other counts) in the alleged corruption scandal.
The eight counts are levelled against the two in their maiden court appearance at the High Court in Banjul on 4th April 2022 presided over by Justice Haddy Roche.
Their appearance in court followed their arrest regarding their alleged involvement in the alleged corruption, malpractices and the missing of fuel products worth USD 20 million at the depot.
In his submission, Lawyer Mene said the accused persons have no case to answer and should therefore not be called upon to defend themselves.
He said the prosecution called twelve witnesses and tendered several documents.
Lawyer Mene said it is was on the basis of the witnesses’ testimonies and exhibits tendered to the court that the prosecution closed its case and that it must be noted for the record that all the witnesses without exception were vigorously cross-examined and that it enables the court to assess the reliability of the evidence in Chief of the witnesses.
Lawyer Mene told the court that having assessed the witnesses and evidence, it is his submission, without any fear of contradiction, that the prosecution have woefully failed to establish a ‘prima facie’ case against the accused persons to warrant calling upon them to defend themselves in the case.
“My lady, it is my submission that the word or phrase “prima facie” is not a magic word. Prima facie evidence is synonymous with sufficient evidence, these evidence which is on the face of it, is sufficient to sustain the charges preferred against the Accused Persons. My lady, it is evident that which in the judgment of the attentive law is sufficient to establish the guilt of the offence they are charged with. My lady, it is trite principle of law that if there is no sufficient evidence linking the Accused Persons to with the statutory elements and ingredients of the offence they are charged, the court of trial must, as a matter of law, discharge them and the court has no business searching and scouting for evidence that is nowhere and therefore, cannot be found.
“To be searching for evidence that is nowhere and therefore cannot be found, is not consistent with our adversarial system of Justice that we have. That will be the inquisitorial system of the Justice administration. I refer the court to the case Onaguruwa vs The State 1993, Nigerian Law Report. The situation we have to sustain the offence is the situation we have here today on all offences without exception. My lady, having reviewed the entire led by the prosecution and the evidence elicited under cross-examination, I cannot but object that the entire case made out by the prosecution can best be described by borrowing Shakespeare’s expression in ‘it is a tale full of sound and fury but signifying nothing’. The accused persons have no case to answer and should therefore, not be called upon to defend themselves,” Defence Lawyer Mene told the court.
Lawyer Mene further told the court that in simple terms, what the accused persons are simply saying is that the prosecution have not established a case against them at all and therefore, they should not be made to face the ordeal of defending themselves.
“I say so with all sense of seriousness being called to defend yourself when the facts are not sufficient is very very traumatic,” he said.
Lawyer Mene referred the court to the case cited above, Ohuka vs The State 1988, Nigerian Law Report, in which the Supreme Court of Nigeria held that a submission that there is ‘no case to answer’ may properly be made and upheld by a court in the following circumstances.
“A. When there is no evidence to prove an essential element in the alleged offence charged.”
“B. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
“This is the position of the law on no case submission across all common law jurisdictions,” Lawyer Mene argued.
Lawyer Mene said he will refer the court to the case cited on the meaning of the essential element of an offence.
He said these conditions supra are disjunctive and conjunctive and that A trial judge is competent to rule that an accused person has no case to answer if one of the two conditions stated above are satisfied. “
That is why the conditions are disjunctive,” he said.
Lawyer Mene said in applying these principles to the particular case, he is submitting that both conditions A and B exist in the case.
He submitted that without any fear of contradiction that the prosecution has not proven the essential elements of the charges in count 1 to 8.
Lawyer it is also his submission that on condition B of upholding a no case submission that the evidence adduced by the prosecution have been so discredited as a result of cross-examination of prosecution witnesses or so manifestly unreliable that ‘this honourable’ court, as a reasonable tribunal cannot safely convict on it.
Lawyer Mene said in analysing the evidence in the case, he will only confine himself to the evidence that are relevant to the 2 conditions in making and upholding a no case submission.
“My lady, the facts in this case speak for themselves. It does not require too much analysis. In going through the evidence, I will be guided and I urge the court to be guided by the common law position as encapsulated in the English locus classicus case,” the lawyer argued.
Lawyer Mene quoted Lord Lenin: “Where there is no evidence that the crime was committed by the Accused, the Judge has to stop the case.”
Lawyer Mene said ‘this dictum’ was reechoed in the case of Ceesay vs The Commissioner of Police (Gambian Case).
He said the right of the accused person to remain silent is a constitutional right guaranteed in the 1997 Constitution of the Gambia; adding in this case, the accused persons have been charged with several offences.
“The statement of offence must be an offence known to all. The particulars of the alleged offence stated in the charge serve the same role as pleadings in a civil matter. So evidence that is at variance with the particulars of offence goes to no issue,” he said.
Lawyer Mene said count 1 of the charges which is “conspiracy to commit economic crime” he had looked at section 268 of the Criminal Code and the offence “conspiracy to commit economic crime” does not exist anywhere.
He said the offence of economic crime was created by a military decree and was amended by another decree and that it was before the coming of the 1997 Constitution.
Lawyer Mene said that decree is only saved by 232 (transitional provision) of the Constitution as an existing law but only to the extent of consistency with the Constitution.
He said any of its provisions that are inconsistent with the Constitution are null and void and that any provision of the decree which is not consistent with the Constitution will be null and void to the level of its inconsistency.
“The offence ‘conspiracy to commit economic crime’ does not exist in the Criminal Code,” he told the court.
Lawyer Mene said with regards to economic crime charges, counts 6, 7 and 8, the most crucial things to the charges are the evidence of PW2, PW4, PW5, PW6, PW8, PW9, PW10, PW11 and PW12 and the exhibits tendered through them.
Lawyer Mene said the evidence adduced by these witnesses are integral and that PW2 and PW4 are from the operations department at Gam Petroleum.
He said the evidence demonstrated clearly that both accused persons are not directly or personally involved in the loading or uplifting of trucks at Gam Petroleum.
“The issue of the accused persons intent cannot be substantiated in any way. There is no evidence before this honourable court that the 1st and 2nd Accused Persons are directly or personally involved in the uplifting or loading of trucks belonging to the OMCs. The evidence established that several people other than the 2 accused persons are involved in the loading of the trucks. Lamin Touray is involved as the depot supervisor, Ousman Bah is involved as the Control Room supervisor, then you have the loading day supervisor who physically load the trucks, then the Finance Department that monitor the throughput charges and ensure that they are paid, then you have reception area where the loading tickets are photocopied, the security of Gam Petroleum, you have customs to ensure that duties are paid, then you have paramilitary stationed at the gate. Evidence has been laid before this court that even trucks that go outside the country their loading is recorded,” Defence lawyer told the court.
Lawyer Mene said all the evidences that was led by the prosecution witnesses demonstrated all the uplift at Gam Petroleum are all recorded and it passes through many stages and that None of the prosecution witnesses have testified that the accused persons have done anything different than what has been in practice at Gam Petroleum for so many years.
He argued that ‘fortunately,’ almost all the exhibits evidence on the uplifts of fuel from Gam Petroleum for the relevant period that were tendered by the prosecution showed that they were signed, endorsed and approved by persons employed by Gam Petroleum other than the 1st and 2nd Accused Persons.
Lawyer Mene said all the uplifts were tendered through witness Ousman Bah, a depot supervisor and that 99% were endorsed or approved by other officials.
“It was said that the system was automatic – it was automated. You have the depot supervisors, the accounts, the customs, the security and others all involved in this process before you can make an uplift. In this process, you cannot take a liter without passing through this process. The Accused Persons are innocent. If those people are innocent then the Accused Persons are innocent. It is on record that only the two Accused Persons are charged,” he argued.
The case is adjourned for continuation of the Defence ‘No Case To Answer’ submission.
Comments are closed.